Legal & Ethical Requirements for Adult Patients

As described in the overview of Ethical & Legal Requirements there are seven checklists available to ensure the correct requirements are followed when making end-of-life decisions. These requirements are based on the nationally recommended ethical framework and they’re codified in NYS Public Health Law. Five of these checklists (Checklists 1-5) apply to adult patients; those are the checklists that will be described on this page. Once the correct checklist is determined, there are various requirements related to witnessing, capacity determination, clinical standards, ethics review committees and notifications that vary by Checklist and by the special considerations for an individual patient.

Requirements That Apply to All Checklists

Several requirements apply on all pathways including:

There must be a thorough discussion or series of discussions with the patient or other decision maker about health status, prognosis and goals for care in a way that is patient-centered; this conversation and the patient’s goals must be documented.

The patient or decision maker must make an informed decision that weighs benefits, burdens and alternatives. Their consent must be documented either in writing with their signature on the MOLST or verbally where the “verbal consent” box on the MOLST is checked. eMOLST always uses verbal consent. Verbal consent has been legal in NYS for these decisions since the original DNR Law in 1987.

Two witnesses must be present for the discussion (presence via phone is acceptable if necessary) and their names must be printed on the MOLST (signatures from witnesses are NOT required or recommended).

Witnesses must be 18+ and able to understand the conversation; the attending physician may always be one of the witnesses; additional witness requirements can vary by checklist.

The attending physician must confirm the conversation with the patient or other decision maker and ensure that all legal & ethical requirements were followed and then sign the MOLST orders.

While these items always hold true, there are a number of requirements that vary by checklist. A comparison of the major variable components of these checklists is available in the chart below.

Specific Requirements by Checklist

Checklist 1

The simplest pathway is always when the patient is able to make their own decisions. This pathway is known as Checklist 1.

MOLST completion is encouraged in a setting where the patient and physician know each other and can have a calm conversation about health status, prognosis, goals and preferences prior to making decisions about end-of-life medical orders. This is an ideal situation and physicians are always encouraged to offer MOLST discussions with appropriate patients.

Checklist 2

Because it is not always possible for every patient to make their own decisions at all times, all patients 18+ should be encouraged to have advance care planning conversations with their family and complete a health care proxy. If necessary, their designated health care agent can step into their shoes and make end-of-life decisions for them. The health care agent is obligated to make decisions as the patient would make them. This pathway is known as Checklist 2. Because the patient lacks capacity to make decisions on this pathway, capacity determination from the attending physician and a concurring physician are required.

Checklists 3, 4 & 5

After the first two pathways the legal and ethical requirements become more complex as the patient did not designate their own health care agent to speak for them and additional patient protections are put into place to ensure decisions are patient-centered and appropriate for the clinical situation. Attending and concurring capacity determination and attending and concurring clinical standards documentation are always required on these pathways. Checklist 3 and Checklist 4 may only be used in the hospital, nursing home or hospice setting. Checklist 5 may only be used in the community. The surrogates in all these situations are obligated to make decisions as the patient would make them or using the best interest standard if wishes are not known; one pathway (Checklist 5) additionally requires “clear and convincing evidence” for decisions other than DNR and DNI. Depending on the setting and the patient’s prognosis, review of the decisions by the facility’s ethics committee may also be required.

Selecting the Right Surrogate on Checklist 3, 4 or 5

Checklists 3, 4 & 5 depend on the correct surrogate being selected from the list provided in New York’s Family Health Care Decisions Act (FHCDA). The surrogate list is in order of priority as follows:

Mental Hygiene Law Article 81 Guardian

Spouse, if not legally separated from the patient, or domestic partner

Adult Child (all biological & adopted adult children may participate – there is no legal priority among the children)

Parent

Adult Sibling

Close Friend (additional documentation is required)

The attending physician must engage the right surrogate in order of priority. Surrogates may defer and in those circumstances the next surrogate on the list is engaged. Surrogates may also choose to not be involved in the discussion or decisions. This should be documented as part of the conversation.

Special Considerations

Each of these pathways also has special requirements for patients who lack capacity due to mental illness (Checklist 2, 3, 4 & 5) or developmental disabilities (Checklist 2 only; patients with DD cannot use Checklists 3, 4 or 5), as well as notifications that are required for patients coming from certain settings.

Checklist Name

Who makes the decisions?

Where are the decisions being made?

Attending & Concurring Capacity Determination Required?

Attending & Concurring Clinical Standards Documentation Required?

Ethics Committee Review Required?

Documentation of Clear & Convincing Evidence Required?

Checklist 1

The patient

Any setting

No  the patient has capacity

No

No

No  the patient is making the decisions

Checklist 2

The health care agent named on the health care proxy

Any setting

Yes

No

No

No

Checklist 3

Public Health Law Surrogate designated in FHCDA

Only in a hospital, nursing home, or hospice

Yes

Yes

Yes  for decisions other than DNR ethics review is often required in nursing homes (depends on prognosis) and not commonly needed in hospitals

No, but it is sometimes helpful for the surrogate

Checklist 4

Two Physicians as designated in FHCDA (only if no other surrogate from FHCDA is available)

Only in a hospital, nursing home, or hospice

Yes

Yes

No, but they are sometimes used to validate the decisions that the physicians are making